H.F. 490 Section 1. NEW SECTION . 147.140 Expert certificate of merit 1 affidavit —— health care providers —— requirements. 2 1. For purposes of this section, “health care provider” 3 means a physician or surgeon, osteopathic physician or 4 surgeon, dentist, podiatric physician, optometrist, pharmacist, 5 chiropractor, physician assistant, or nurse licensed in this 6 state, a hospital licensed pursuant to chapter 135B, or a 7 health care facility licensed pursuant to chapter 135C. 8 2. a. In any action for personal injury or wrongful 9 death against any health care provider based upon the alleged 10 negligence of the licensee in the practice of that profession 11 or occupation, or upon the alleged negligence of the hospital 12 or health care facility in patient care, which includes a cause 13 of action for which expert testimony is necessary to establish 14 a prima facie case, the plaintiff shall, within one hundred 15 eighty days of the defendant’s answer, serve upon the defendant 16 an expert’s certificate of merit affidavit for each expert 17 listed pursuant to section 668.11 who will testify with respect 18 to the issues of breach of standard of care or causation. 19 b. Each certificate of merit affidavit must be signed by 20 the expert. The affidavit must certify the purpose for calling 21 the expert by providing under the oath of the expert all of the 22 following: 23 (1) The expert’s statement of familiarity with the 24 applicable standard of care. 25 (2) The expert’s statement that the standard of care was 26 breached by the health care provider named in the petition. 27 (3) The expert’s statement of the actions that the health 28 care provider should have taken or failed to take to have 29 complied with the standard of care. 30 (4) The expert’s statement of the manner by which the breach 31 of the standard of care was the cause of the injury alleged in 32 the petition. 33 c. A plaintiff shall serve a separate affidavit on each 34 defendant named in the petition. 35 -1- LSB 1406HV (3) 84 rh/rj 1/ 4

H.F. 490 d. Answers to interrogatories may serve as an expert’s 1 certificate of merit affidavit in lieu of a separately executed 2 affidavit if the interrogatories satisfy the requirements of 3 this subsection and are signed by the plaintiff’s attorney and 4 by each expert listed in the answers to interrogatories and 5 served upon the defendant within one hundred eighty days of the 6 defendant’s answer. 7 3. The expert’s certificate of merit affidavit does not 8 preclude additional discovery and supplementation of the 9 expert’s opinions in accordance with the rules of civil 10 procedure. 11 4. The parties by agreement or the court for good cause 12 shown and in response to a motion filed prior to the expiration 13 of the time limits specified in subsection 2 may provide 14 for extensions of the time limits specified in subsection 15 2. Good cause shall include the inability to timely obtain 16 a plaintiff’s medical records from medical providers when 17 requested prior to filing suit and not produced. 18 5. If the plaintiff is acting pro se, the plaintiff shall 19 sign the affidavit or answers to interrogatories referred to 20 in this section and shall be bound by those provisions as if 21 represented by an attorney. 22 6. a. Failure to comply with subsection 2 shall result, 23 upon motion, in dismissal with prejudice of each cause of 24 action as to which expert testimony is necessary to establish a 25 prima facie case. 26 b. A written notice of deficiency may be served upon the 27 plaintiff for failure to comply with subsection 2 because of 28 deficiencies in the affidavit or answers to interrogatories. 29 The notice shall state with particularity each deficiency of 30 the affidavit or answers to interrogatories. The plaintiff 31 shall have fourteen days to cure the deficiency. Failure to 32 comply within the fourteen days shall result, upon motion, in 33 mandatory dismissal with prejudice of each action as to which 34 expert testimony is necessary to establish a prima facie case. 35 -2- LSB 1406HV (3) 84 rh/rj 2/ 4

H.F. 490 A party resisting a motion for mandatory dismissal pursuant to 1 this section shall have the right to request a hearing on the 2 motion. 3 EXPLANATION 4 This bill relates to the filing of a certificate of merit in 5 a medical malpractice action. 6 The bill provides that in any action for personal injury 7 or wrongful death against any health care provider based upon 8 negligence, which includes a cause of action for which expert 9 testimony is necessary to establish a prima facie case, the 10 plaintiff is required, within 180 days of the defendant’s 11 answer, to serve the defendant with an expert’s certificate 12 of merit affidavit for each expert listed who is expected to 13 testify with respect to the issues of breach of standard of 14 care or causation. 15 The bill provides that each certificate of merit affidavit 16 must be signed by the expert and include the expert’s statement 17 of familiarity with the applicable standard of care, the 18 expert’s statement that the standard of care was breached by 19 the health care provider named in the petition, the expert’s 20 statement of the actions that the health care provider should 21 have taken or failed to take to have complied with the standard 22 of care, and the expert’s statement of the manner by which the 23 breach of the standard of care was the cause of the injury 24 alleged in the petition. 25 The bill provides that a plaintiff shall serve a separate 26 affidavit on each defendant named in the petition and that 27 answers to interrogatories may serve as an expert’s certificate 28 of merit affidavit in lieu of a separately executed affidavit 29 if the interrogatories satisfy the requirements previously 30 noted and are signed by the plaintiff’s attorney and by each 31 expert listed in the answers to interrogatories and served upon 32 the defendant within 180 days of the defendant’s answer. 33 The bill provides that a certificate of merit affidavit 34 does not preclude additional discovery and that the parties by 35 -3- LSB 1406HV (3) 84 rh/rj 3/ 4

H.F. 490 agreement or the court for good cause shown may provide for 1 extensions of the time limits provided in the bill. If the 2 plaintiff is acting pro se, the plaintiff is required to sign 3 the affidavit or answers to interrogatories and shall be bound 4 by those provisions as if represented by an attorney. 5 The bill provides that failure to comply with the 6 requirements of the bill shall result, upon motion, in 7 dismissal with prejudice of each cause of action as to which 8 expert testimony is necessary to establish a prima facie case. 9 A written notice of deficiency may be served upon the plaintiff 10 for failure to comply with the requirements of the bill because 11 of deficiencies in the affidavit or answers to interrogatories. 12 The plaintiff shall have 14 days to cure the deficiency and 13 failure to comply within the 14 days shall result, upon motion, 14 in mandatory dismissal with prejudice of each action as to 15 which expert testimony is necessary to establish a prima facie 16 case. A party resisting a motion for mandatory dismissal under 17 the bill has the right to request a hearing on the motion. 18 For purposes of the bill, “health care provider” means 19 a physician or surgeon, osteopathic physician or surgeon, 20 dentist, podiatric physician, optometrist, pharmacist, 21 chiropractor, physician assistant, or nurse licensed in this 22 state, a hospital licensed pursuant to Code chapter 135B, or a 23 health care facility licensed pursuant to Code chapter 135C. 24 -4- LSB 1406HV (3) 84 rh/rj 4/ 4